BAILEY AND ZAHNER BUILDERS, INC. vs. GABRIEL J. GADOURY, GABRIELLE GADOURY, PAUL J. GADOURY and CHERYLL GADOURY.

Bailey and Zahner Builders, Inc., the plaintiff, seeks to register a parcel of vacant land in Wrentham, in the County of Norfolk, situated on the southerly side of Spring Street and shown on a plan entitled "Plan of Land in Wrentham, Mass., Supposed Owner / Bailey & Zahner Builders, Inc." dated February 4, 1985 by Stavinski Engineering Associates, Inc. (Exhibit No. 1). The defendants, Paul J. Gadoury and Cheryll Gadoury, both of Cumberland, in the County of Providence, in the state of Rhode Island, do not dispute plaintiff's title to the land shown on the filed plan in this case, but allege that they have a right of way both by necessity and by prescription across the locus for the benefit of their adjoining land situated in the state of Rhode Island. Gabriel J. Gadoury and Gabrielle Gadoury who were named in the citation in this case are predecessors in title of the defendants and have no further interest in this matter.

A trial was held at the Land Court on January 24, 1989 at which a stenographer was appointed to record and transcribe the testimony. The filed plan, the abstract prepared by the Land Court Examiner, a title report prepared for the defendants by New England Land Title Insurance Agency, Inc., a certified copy of Plat No. 49 from the records of the Cumberland (Rhode Island) Assessors, and twelve photographs were admitted into evidence. The only witnesses were Howard Bailey, president and treasurer of the plaintiff, and Paul J. Gadoury, one of the defendants.

On all the evidence, I find and rule as follows:

1. The plaintiff's record title to the locus is not suitable for registration. The plaintiff is the successor in title to the grantee of the Town of Wrentham of an unforeclosed tax title. There also are in the chain of title three missing probates which accordingly adversely impact the record title. However, the defendants do not raise any question about the record title, and accordingly, the plaintiff may be able hereafter to establish to the satisfaction of the Court that, by reason of adverse possession or otherwise, its title is proper for registration. [Note 1]

2. The land now of the respective parties originally was owned in common by Jacob Nightingale to whom a large tract containing about sixteen (16) acres and running from Spring Street in Wrentham across the state line to Cumberland was conveyed by Albert W. Metcalf, by deed duly recorded on February 16, 1981 in the Norfolk County Registry of Deeds, Book 525, Page 567 (Exhibit No. 2, s. 2).

3. By instrument dated October 11, 1926 and duly recorded in Book 1721, Page 57 (Exhibit No. 2, s. 6), the Wrentham Tax Collector conveyed the property to Napoleon Deschamps for non-payment of the 1925 real estate taxes. There was no action taken by the Town to foreclose the taxpayer's equity of redemption. Subsequently, the Town made a taking from Mr. Deschamps by instrument dated October 24, 1938 and duly recorded in Book 2213, Page 614 (Exhibit No. 2, s. 7). An action was commenced in the Land Court to foreclose the equity of redemption pursuant to such taking, but subsequently the tax title was redeemed in 1972. Presumably, no further Court action was taken.

4. The Rhode Island portion of the locus faired no better so far as real estate taxes are concerned. Jacob Nightingale neglected also to pay the Cumberland real estate taxes, and in May of 1927 the Collector of Taxes for the Town of Cumberland conveyed the premises to one John P. McLaughlin (Exhibit No. 3). Subsequently, by deed dated December 14, 1931, John P. McLaughlin conveyed the Rhode Island portion of the tract to Moise Gadoury, et al, by deed dated December 14, 1931 and duly recorded in Book 82, Page 432, and the title passes thereafter to the defendants through several mesne conveyances. The description in the Rhode Island conveyances uses that of the original deed from Metcalf to Nightingale and thus describes the entire parcel in both states from which it excepts the portion situated in Massachusetts.

5. An examination of the Cumberland Assessors' plan shows no access for the land now owned by the defendants to any street or way, public or private, in Rhode Island, nor was the Court shown any instruments creating appurtenant easements of which the defendants' land has the benefit. Accordingly, there appears to be an absolute necessity for the defendants to pass over the portion of the original tract situated in Massachusetts for access to and egress from their land.

6. Members of the defendants' family had a primitive cottage on the Cumberland portion of the premises in the 1950's, but it was unclear when the cottage actually was built. Mr. Gadoury testified to the cottage being there when he was four or five years old and he frequently visited it with his father in the summertime. As youngsters, he and his siblings would play in the woods and have picnics. His uncle lived there at least during the summer months. Access always was from Spring Street. The cottage burned down in the 1960's, but he has continued to visit his land and has reached it on foot from Spring Street. At some point, plaintiff placed boulders across the way which shows on the plan, but it was still possible to enter on foot.

7. The defendants have no intention of building on their Cumberland land, but they wish to be able to reach it in order to enjoy its natural setting. They have tried to find access within Rhode Island, but unsuccessfully.

8. The Algonquin Gas Transmission Company has an easement which crosses the width of locus. Third persons with motorcycles or dirt bikes frequently pass and repass over the easement and permits to traverse the cart path are shown on the plan. The owner immediately previous to the plaintiff also was a developer and he cut wood from the locus. Mr. Bailey testified that the cart path was constructed when his company deeded out portions of the locus in order to do percolation and soil testing and that there was a continuous stone wall along Spring Street when he purchased the property.

The severance of the title in the present case was not a voluntary act but occurred when each of the two towns in which the original parcel was situated took the relevant portion thereof for non-payment of real estate taxes. The fact that the severance of title is by operation of law and not voluntary does not, however, prevent the acquisition of an easement by necessity. See Davis v. Sikes, 254 Mass. 540 (1926) and Flax v. Smith, 20 Mass. App. Ct. 149 (1985). In the latter case Justice Fine stated, at page 152, that implied easements "have been recognized when land was formerly in common ownership, when use, of one part of the land was made for the benefit of another part up until the time of the severance of ownership, and when the use of one part is both reasonably ascertainable and reasonably necessary for the enjoyment of the other part." The case then goes on to hold that the passage of title involuntarily did not change the result which it would have reached had title passed by an ordinary voluntary conveyance. Since the severance of title here was so long ago, there was no evidence as to what use may have been made of the Massachusetts land for the benefit of that in Rhode Island. However, when such an easement is absolutely necessary as distinguished from reasonably necessary, the prior use of one portion for the benefit of the other is not important. See Perodeau v. O'Connor, 336 Mass. 472 (1957) and Taylor v. Lassell, 4 Mass. App. Ct. 539 (1976).

There is no other access to the Rhode Island land, and accordingly, the law implies an easement for the benefit thereof across the land of the plaintiff to Spring Street, such way to be of a reasonable width. The owner of the servient estate can fix the location of the way (see Davis v. Sikes, infra) but in the present instance there is an existing way on the ground which I find and rule should be established as the way by necessity. There is also evidence that the way had been used by the defendants and their predecessors in title for sufficient time to establish the right of way by prescription pursuant to the provisions of G.L. c. 187, §2.

On all the evidence, therefore, I find and rule that there is appurtenant to land of the defendants situated in Cumberland, Rhode Island, a right of way by necessity on the location shown as cart path on the filed plan, a right of way to pass and repass, on foot and in vehicles, from such land to Spring Street.

I further find and rule that the title of the plaintiff is not such as to entitle it to registration on the present record, but that plaintiff may furnish the Court with such additional information as the Court may request to perfect the record title.

Judgment accordingly.